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Sunday, October 26, 2008

Is the Constitution a Living, Breathing Document

One of the biggest shames of most Presidential campaigns is the total lack of attention that the Supreme Court and judges in general receive. The Supreme Court is the most lasting legacy of any President. Earl Warren became one of the most liberal jurists in history and yet he was chosen by the Republican President Dwight Eisenhower.

In this election, we have two very different philosophies. Senator Barack Obama believes that the Constitution is a living breathing document to be updated and refined by the Justices on the Supreme Court. John McCain believes that the Constitution is a static document to be strictly constructed and interpreted by the Justices.

I firmly believe that the Constitution is NOT a living breathing document, and that Justices should construct the Constitution strictly. My biggest problem with those that believe the Constitution is living and breathing is that it is position that comes from hubris. After all, you aren't going to find one person that wrote the Constitution itself that believed that this document would update and change unless amendments were added. Worse than that, those that believe that the Constitution should be living and breathing then also believe that their judgment is better than that of the folks that wrote the Constitution. After all, how else can you explain that these folks want the Constitution to live and breathe and thus be updated as they see fit? It's only because they don't believe the Founding Fathers were wise enough to construct a document that could stand the test of time. Instead, they believe that it is their duty to update it and make it better. This, to me, is hubris of the highest order. Finally, the founding fathers created the amendment system for all those that believed in a living, breathing Constitution. In order to change it, one must go through the amendment process. Those that believe in a living, breathing Constitution also think that unelected judges should usurp the role of everyone involved in amending the Constitution.

Those that believe that the Constitution is a living and breathing document also fail to appreciate the nuance and sophistication of the Constitution. In fact, the Founding Fathers were plenty wise enough to construct a document, in its original format, that could itself adapt to the future. That's because the Constitution was to be precise where the Founding Fathers believed that a principle needed to stand the test of time. On the other hand, it was vague in other areas where the Founding Fathers couldn't predict the future.

Let's look at an example of each. First, let's look at a place in the Constitution where it was precise. Let's take a look at the first amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press

Now, this particular part of the constitution is extremely specific. It says that Congress shall make no law respecting an establishment of religion. This means that Congress, and Congress only, is prohibited from making any law respecting an establishment of religion. It doesn't prohibit the states from doing as much. In fact, the tenth amendment gives all powers not enumerated in the Constitution to the states. By both of these portions, the Constitution allows for the states to do as they please regarding the Constitution.

A great example of a jurist that believed the Constitution was a living and breathing document, as it relates to the first amendment, was Everson V Board of Education

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.

Neither a state northe Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.

Now, it's interesting that Justice Hugo Black, who wrote this opinion, referenced Thomas Jefferson. That's because Jefferson was in France when the Constitution was written. Furthermore, Black used Jefferson's interpretation of the establishment clause rather than simply interpreting it himself. There is no separation of church and state in the Constitution. It was put in there by someone that believed that the Constitution was "living and breathing". As such, a matter of state's rights turned into a matter of the separation of church and state even though the founding fathers never meant it as such.

Now, let's look at another portion of the Constitution. Let's look at the Commerce Clause.

The Congress shall have power . . . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes

This portion is precise in that it enumerates the powers of regulations of Commerce to Congress and Congress alone. Just as the Constitution forbids the Congress, and the Congress alone, from making any law establishing religion, it also gives the Congress, and the Congress alone, the power to regulate commerce. The regulation of commerce though is a vague and nebulous concept that can change and evolve as time goes on. As such, as the country evolves, so to will the Congress' role in regulating commerce. As such, while the Founding Father could never have imagined a force like the internet, they were smart enough to give the Constitution enough foresight to give the Congress the power to regulate something as vague as Commerce which includes the internet and many other forces the Founding Fathers could never have imagined.

The Constitution doesn't need to be living and breathing as the Constitution is vague enough, in those places where it needs to be, to allow those that follow it to adapt with the changing environment around them. It's full of the nuance and sophistication that you can find in both the first amendment and the commerce clause. If we are faithful to its original intent, we can find that it is an ingenius guide that allows just enough flexibility where it is necessary, and also, it provides strict guidelines where they are necessary.

1 comment:

Anonymous said...

The commerce clause is the greatest flaw in the constitution as it stands today. Its purpose was to keep the states from setting up trade barriers between them, not to provide a pretext for the federal government to interfere in anything that is bought and sold (or might be bought or sold) throughout the country, whether it's across state lines, or even within a person's own home.

The lesson to be drawn from our government's abuse of the commerce clause, is that those who seek power will use any possible excuse to rationalize their actions.